How to Protect Your Rights Under the Unconscious Clause

In Arizona police are permitted to request a warrantless, non-consensual blood draw, from a DUI suspect who is unconscious under A.R.S. §28- 1321.

The blood draw may be unconstitutional if an individual’s rights are violated in the process.

Recently, the Arizona Supreme Court ruled that the unconscious clause is permissible only when invoked non-routinely, under exigent circumstances that are case-specific.

The Court decided that the blood draw was unconstitutional because circumstances were not exigent, and the test was requested under a routine procedure, rather than consideration of the facts of the case.

Under the good faith exception, evidence collected in violation of a person’s Fourth Amendment rights can still be admitted at trial, only if the police acted in good faith.

But the court also determined that the good-faith exception to the exclusionary rule did not apply.

In this article we will discuss the decision, what means for Arizona drivers, how to protect your rights, and what happens if your rights are violated.

Case Overview

The case arose when the defendant, a driver with four passengers, drove his SUV into an oncoming car. A witness traveling behind the SUV would later testify that the man was driving erratically and had crossed the centerline several times.

After the crash, a witness saw someone crawl over the hood and lie down in front of the SUV, while the defendant got out of the driver’s side and lay down behind the SUV.

An officer responding to the scene approached the defendant who was being treated by medics. The suspect confirmed he’d been driving the SUV, but did not answer any questions about what happened.

The officer smelled alcohol coming from all of the occupants of the SUV, and saw beer cans as well as an opened bottle of liquor in the vehicle.

Meanwhile, the suspect was airlifted to a Nevada hospital for treatment. Without obtaining a warrant, the officer told the dispatch to ask the Las Vegas police to get a DUI blood sample.

The defendant was unconscious at the time the DUI blood sample was taken, and results indicated that his Blood Alcohol Content (BAC) was 0.212, in violation of AZ Super Extreme DUI law.

The suspect was charged with driving under the influence on a suspended license, aggravated DUI with a BAC of more than .20, aggravated DUI with BAC of more than .20 with a suspended license, aggravated assault with a deadly weapon, recklessly endangerment with a substantial risk of imminent death, and four counts of aggravated assault on his passengers with a deadly weapon.

Before trial, the defense filed a motion to suppress the blood test results on the grounds that the test was taken without a search warrant.

The trial court deemed the search permissible because the police had probable cause to believe the suspect had been driving under the influence in violation of both Arizona and Nevada laws.

Further both Nevada and Arizona possessed laws which allowed police to draw blood for a DUI investigation, from unconscious drivers suspected of driving impaired.

The trial ruled in favor of the state. It decided that even if police should have obtained a warrant, they relied on statutes that were in effect at the time of the blood draw, and therefore the good faith exception applied.

The defendant was found guilty of four crimes and lesser-included offenses, and was sentenced to 17.5 years in prison in concurrent sentences.

He appealed arguing that his blood was draw in violation of his Fourth Amendment rights against unlawful search and seizures.

The appellate court affirmed the trial court’s decision and reasoned that even if the blood draw was unconstitutional, the evidence should be admitted because law enforcement’s actions were protected by the good faith exception.

An appeal was then made to the Arizona Supreme Court, and it agreed to consider the denial of the motion to suppress the DUI blood test evidence.

Meanwhile, the state conceded that the unconscious clause was unconstitutional as applied to the facts of this case, because exigent circumstances didn’t exist.

The Arizona high court agreed. It noted that under prior Fourth Amendment case-law, a compelled physical intrusion into the veins to get blood as evidence implicated a deep-seated expectation of privacy.

The Arizona implied consent law didn’t allow the State to avoid establishing voluntary consent or another exception to the requirement of getting a warrant, to justify a warrantless blood draw from a DUI suspect.

Unless an exception applies, a warrantless blood draw to which the DUI suspect doesn’t consent is unconstitutional.

The Court reasoned that with probable cause the police could conduct a warrantless, non-consensual blood draw from an unconscious suspect.

That is, if they reasonably believed a warrant could not be obtained without significant delay that would result in undermining the testing.

The State argued that case precedent which existed at the time of the incident, allowed for the unconscious clause the blood draw because of the possibility of loss of evidence due to the body’s dissipation of alcohol.

The Court discussed Missouri v. McNeely, 2013, which was decided after the defendant’s arrest. In it, the U.S. Supreme Court held that exigent conditions must exist and be determined by considering totality of the circumstances specific to the case.

It held that natural dissipation of alcohol from the body was not enough in and of itself to establish exigent circumstances alone, because it was only one factor.

The Court noted that considering the totality of the circumstances on the merits of facts specific to the case was not a new legal standard.

The Arizona Supreme Court explained that McNeely was a Court opinion, and not a constitutional law, and the Court’s opinion was based on decades of existing case-law.

The state argued that in the least, the good faith exception to the exclusionary rule should apply, because the officer followed agency procedures.

Further, the Arizona Department of Public Safety (DPS) officer testified that he relied on his training and agency’s procedures when he decided to go ahead and get the blood test without a warrant.

The officer explained this it was Arizona DPS protocol to request a blood draw from unconscious DUI suspects if they are transported out of state.

But the Arizona Supreme Court disagreed. It reasoned that the DPS Agency should have known that such procedure was unlawful.

It explained that routinely allowing blood draws from suspects sent out of the state for an emergency treatment without specifically deciding whether a warrant could be gotten in a timely fashion was in the least constitutionally suspect.

The Court acknowledged that there was sufficient evidence at the scene to establish probable cause so that the officer could have requested a search warrant.

Further, the warrant could have been obtained expeditiously either by telephone or electronically.

Systematically bypassing a warrant based on a routine procedure, without consent or considering case-specific circumstances, was in violation of 4th Amendment protections from unlawful search and seizures.

The Court noted that the purpose of the Exclusionary Rule was to deter law enforcement from engaging in practices that violate an individual’s constitutional rights.

With regard to the good faith exception, the Court explained that if police officers act in good faith on a binding case-law precedent that clearly authorizes a specific procedure, it would apply.

However, they advised that was not the case here. The DPS Agency protocol to routinely request a blood draw on unconscious suspects transported out-of-state for medical treatment, was not authorized by any state law, or binding case precedent.

Therefore, the good faith exception to the requirement that a warrant be obtained didn’t apply.

In conclusion, the Court noted that the decision as to whether or not Arizona or Nevada law applied still needed to be resolved.

If it is determined that Arizona law applies, the appellate court’s decision will be vacated, and the trial court’s decision on the motion to suppress will be reversed. This means the DUI blood draw results will not be admissible.

Also of interest is the case, the dissent filed a critical opinion suggesting that rulings of this nature pose a risk that those who commit crimes go free without being held accountable.

The majority opinion recognized that such consequences are inevitable when unlawful police strategies being used, that are in conflict with constitutional protections.

Impact on Arizona Drivers

It is necessary for law enforcement to look at the specific facts particular to each case in order to invoke a warrantless blood draw on an unconscious suspect, when it is not feasible to get a timely warrant.

Police must have probable cause based on exigent circumstances in order to request an non-consensual warrantless blood draw under A.R.S. 28 – 1321 (c).

Exigent circumstances must be established by considering the unique circumstances in each case to ensure that the warrantless blood draw does not violate the suspect’s rights.

The Arizona Supreme Court determined that it is unconstitutional to routinely request a blood test be taken on DUI suspects who are unconscious and being transported out-of-state.

While this is not new legislation, it serves to assure protections of suspects rights as an Arizona case precedent. Case law can influence the outcome of future decisions involving issues of this nature in the state.

How to Protect Your Rights Under the Unconscious Clause

If you are being investigated at a stop for suspicion of DUI it is important that you preserve your rights and avoid self-incrimination.

The best way to protect your rights is to be familiar with them, and how they apply under specific circumstances.

Below are some things to keep in mind if you are being investigated for DUI, your rights under the Arizona’s Unconscious Clause, or if you have been arrested for impaired driving due to alcohol or drugs:

Under Arizona’s Implied Consent Law, persons who drive in the state give their consent to breath or chemical testing. If a person is unconscious, they are not exempt from compliance with this law. However, the blood draw must still be constitutional to be permissible. Drawing a person’s blood for a DUI investigation is privacy right protected by the 4th Amendment of the U.S. Constitution.

If you have been involved in an accident, or a medical issue arises, you have the right to direct decisions about your medical treatment. This includes the refusal of unwanted medical treatment. This right is protected under the 14th Amendment of the U.S. Constitution. It is also protected under the Arizona Constitution, Article 2, Section 8, your right to privacy.

If you wish to accept or refuse medical treatment, try to make your wishes known to police and/or emergency technicians expressly and as clear as possible.

You do not have to consent to a DUI breath or lab test, if police do not have a search warrant with probable cause. There are however, consequences for refusal including a one year loss of driver’s license under Arizona law. Also, if the police have probable cause, despite a refusal, they may arrest you anyway. Note that you do not have to submit to Field Sobriety Tests because these are optional. Courts have historically found them unreliable in many cases.

If police decide to arrest you, do not argue with them, and cooperate with routine procedures. This may result in additional charges. Never reach for an officer’s weapon, or do anything that would cause them to feel threatened. This may result in more charges as well as bodily harm. As soon as reasonably possible consult an experienced criminal defense attorney who defends charges in the jurisdiction where you were arrested.

No matter how serious your charges, you have the right to defend them.

There may be defenses that can be used to challenge your charges and evidence.

Different types of defenses may apply based on the circumstances surrounding the incident.

In the case discussed above, constitutional challenges were made.

If your rights were violated, your attorney can file a pretrial motion to suppress evidence if was obtained unlawfully by police.

When material evidence is suppressed, it often leads to a dismissal or an acquittal of the charges.

DUI offenses in Arizona are criminal charges. All impaired driving charges are serious, especially in the case of Aggravated DUI offenses which are felonies.

Sentencing for felony impaired driving convictions expose a person to prison sentences that range from 10 or 30 consecutive days to 8 months or more in prison.

Other penalties include average fines of $4,000.00, one year license revocation; installation and use of an ignition interlock device on the driver’s vehicle for 2 years; possible forfeiture of vehicle; alcohol, or substance abuse treatment, and other criminal penalties.

Felony impaired driving convictions result in loss of privileges to carry or possess firearms and voting rights.

Other inherent consequences can result from felony convictions. These may include loss of job, or inability to get a job; loss of occupational licenses; credit problems; loss of scholarships; inability to get admitted into certain schools, sports or activities; and many other adverse consequences.

For these reasons, it is important that if you face any Aggravated DUI charges that you retain an experienced criminal defense attorney before appearing in court.

If you were arrested or charged with a DUI charge in Tempe, Chandler, Gilbert, or Scottsdale, consult DUI attorney James E. Novak. As a former Maricopa County Prosecutor.

James Novak uses his insights and experience obtained as a prosecutor to evaluate whether any of your constitutional rights were violated and develop the strongest possible strategy to defend you. He offers a free initial consultation for people facing active criminal charges in his area.

If you have been charged with a crime, contact or call The Law Office of James Novak at (480) 413-1499, and speak directly with DUI defense attorney, James Novak.